Negotiating Your Divorce Settlement

Negotiating isn't about getting the biggest slice of the pie--it's about learning to make the pie bigger.
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Negotiating isn't about getting the biggest slice of the pie--it's about learning to make the pie bigger.

Here's how you get started:

During a divorce, many people become very position-based, talking about settlement in absolute terms, such as "I want 100 percent of the 401(k)." They lose sight of their true goal, which is to be financially secure.

It's important to always look for options. When you expand the position from "I want 100 percent of the 401(k)" to "I want to be able to retire like I've planned to and not worry about money," there may be several ways to secure those retirement goals, and they may or may not have to do with the 401(k).

Many people think that divorce negotiations are all about compromise. This is only partly true. A win-win settlement occurs when both spouses accomplish their most important goals with the fewest compromises, and give away more on their less important goals. That is why it is so important for each person to set priorities, so you make sure the most important goals are accomplished.

Sound complicated? It's not that hard when you see a couple of illustrations. Here's a sample of positions that can be articulated in terms of the underlying goal (interest):

Position: I want Wednesday night overnights
Interest: I want to be involved in parenting my child during school time as well as vacation time. I don't want to be stuck being a "Disneyland Parent."

Position: I don't want to pay alimony or spousal support
Interest: I want to be financially secure, and to be able to retire when I'm ready.

Position: That 401(k) is mine, and I'm not dividing it.
Interest: I want recognition for being financially responsible and I don't want to feel punished for trying to do the right thing.

As you can see, for example, each of these the goals might be solved in several different ways. There's never just one solution. You don't have to limit yourself when you're willing to think creatively. But thinking this way doesn't come naturally. It takes practice.

And just because you're able to identify your own goals and interests (and not just your positions) and why you want what you want, it doesn't mean your spouse can. So he or she may need your help. I know, you don't really feel like helping at the moment, but this is not being nice--it's being strategic. You need to solve this settlement if you're ever going to get through your divorce with your shirt and your sanity.

So ask questions, like "Help me to understand why that is important to you." This is about finding out why your spouse wants what he or she wants and then figuring out a way to give it to them that also works for you. And if it's something that you can't agree to, or figure out how to agree to, at least your spouse knows you listened and considered their wishes. That will go a long way in helping your spouse to compromise, too, when it's about something that's important to you.

Be very clear that you're willing to consider your spouse's position, and if you're not sure you'll agree to the request, you can say, "I am not sure I'll be able to agree to that exact request, but would you be willing to consider a different way to do what you're asking?"

For example, "I'd love to be able to waive spousal support. I know it bugs you to have to pay me and frankly I hate having to ask for it. But I need to be able to support myself. I'd be willing to consider a waiver or shorter time period if we can figure out a way to help me be self-sufficient. Can you help me think of ways to accomplish that?"

If Things Aren't Going as Hoped

If the negotiations aren't going as smoothly as you'd hoped, ask yourself:

•Are my requests and expectations reasonable given our situation and the law?

•If I were my spouse, would I accept the proposals I'm making?

•Are my offers fair? Would other people perceive them as fair?

•Are my proposals based on facts that I can prove, like the size of our brokerage account? If so, does my spouse have the information so he or she will know that what I'm asking for is based on facts?

•Is timing an issue? Am I pushing too hard, too fast, or going more quickly than my spouse can tolerate?

•Is the settlement I'm requesting in line with other court decisions or settlements?

•Can I force this issue? How likely am I to win?

•What are the pros and cons of continuing to pursue my present course?

Like so many valuable life lessons, these skills are simple, but not easy. But the effort you put forth in learning how to interact with others this way--particularly your co-parent or former spouse--will help you move through difficult relationships in a more peaceful way.

You can start to work on your goals for settlement using our free, private eJournal.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Penguin 2010), and Your Divorce Advisor (Simon & Schuster 2001) and a mediator at Peace Talks Mediation Services, Inc.

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